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Supreme Court considers first campaign finance decision since Citizens United.

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JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore. And welcome to The Real Debate.

On Tuesday, the Supreme Court heard the case of McCutcheon v. Federal Election Commission. The case is one of the most consequential campaign finance decisions since the 2010 Citizens United ruling, which allows corporation spending in elections.

Now joining us in a discussion about the case and its implication on the political process are our two guests. Adam Lioz is a lawyer and policy advocate who serves as Demos counsel. And we have David Keating, who is the president of the Center for Competitive Politics.

Thank you both for joining us.



DESVARIEUX: So, David, let’s start out with you. I know that you and your organization filed an amicus brief in support of McCutcheon. Can you explain your organization’s position and why you are supporting McCutcheon?

KEATING: Well, our organization is a big believer in the First Amendment. We think it should mean what it says. And it’s fairly simple: the Congress shall make no law abridging the freedom of speech.

And this law [incompr.] McCutcheon and other people across the country clearly limits their right to affiliate with candidates to the extent that they would like. As one of the justices today indicated, he said, well, let’s say we have a person who would like to support candidates who believe in environmental regulations and gun control. If they want to give the maximum they can, they have got to choose between the types of candidates they want to support, because they won’t be up able to support them all.

And so we say that the clear effect of this law–and it’s not surprising, given who passed it–it’s members of Congress. And they want to starve the ability of candidates to raise money so they can take on the incumbents. And so that’s why we think the Court should strike this law down.

DESVARIEUX: Okay. Adam, what’s your response? Do you think the Court should strike this law down?

LIOZ: Absolutely not. It would be a pretty radical departure from prior precedent if the Court were to do that. Really this case is called McCutcheon v. FEC, but really it’s about do we want a democracy of the many or of the money. What’s at stake here is whether the Court is going to reach in and give more power to a very narrow set of wealthy donors who already have tremendous influence over who runs for office and who wins elections.

At Demos, we’re big fans of the First Amendment too, but we do not think that the founders intended the First Amendment to be a tool for use by the wealthy to dominate the political process. The Supreme Court has mangled the First Amendment over the years, and this case is an invitation to do that further. We really think that what’s necessary here is a democracy in which the strength of your voice does not depend upon the size of your wallet. And this case would take us in the opposite direction.

I just want to say a couple of words about what Mr. Keating said about incumbency protection. That’s an argument that we hear a lot. It sounds very reasonable. But it’s just not borne out by the facts. Our big-money system, which we already have, which–by the way, the limit that Mr. McCutcheon is challenging is currently $123,200. That’s how much he’d be allowed to contribute into the political system in just one election cycle. That’s twice what the average American family makes in a year. So we’re not talking about a stringent infringement on anybody’s rights to participate.

And the reality is that we already have a big-money system, and incumbents fare very well in this system. Incumbents already raise substantially more money than challengers. As an example, our recent report, Billion-Dollar Democracy, showed that in the 2012 cycle, House incumbents outraised challengers by more than 400 percent. They simply have more access to big money than do most challengers. So a big money system suits incumbents just fine. Usually the strongest campaign finance laws–.

KEATING: That’s incorrect. The data show that challengers rely on a larger–especially successful challengers, rely on a bigger portion of their fundraising from bigger donors. And that’s not surprising.

And we can also look back. And I think probably the most instructive situation: the last time we had a sitting president who was taken out in a primary for reelection was during 1968 election, and we had Gene McCarthy, who ran against sitting a president. He started his campaign in October of the year before the election with the New Hampshire primary in February. That is a very compressed schedule. Gene McCarthy raised about $10 million in today’s money from five donors, and he used that money to make the case against the Vietnam War. And if we had the kind of campaign contribution limits then that we have now, there would’ve been no Gene McCarthy campaign, LBJ wouldn’t have been seriously challenged for his nomination, and he wouldn’t have been forced out of the race.

So to say there’s no evidence that you have at all that incumbents benefit from big money–in fact, it’s probably the reverse. The incumbents have the name ID, they have the franking privilege, they get coverage in the media, and it’s the challengers that need access to money from somebody who really believes in them.

LIOZ: Actually, I do have evidence. There’s studies that have looked comprehensively at this issue across the states and have concluded that contribution limits do not harm challengers.

But we can argue back and forth about this particular point. I mean, I think it’s instructive if you–.

KEATING: The fact is we have not had a sitting president pulled out by a challenge in a primary. It hasn’t happened since.

LIOZ: There’s anecdotal evidence, you know, all over the place. You know, there are comprehensive studies on this issue.

I think the most instructive point on this particular issue is, if you look at how most strong campaign finance laws have been passed across the states, they’re mostly passed on the ballot, where that’s an opportunity. If you look at low-limits ballot initiatives, they pass overwhelmingly by the people. So if you’re trying to paint a picture of–.

KEATING: So what? For many years–for many years we had laws that we passed overwhelmingly to ban gay marriage. Just because people vote for something doesn’t make it right that a majority can silence or take away rights of a minority.

LIOZ: No, sure. David, I’m just making a narrow point, which is that if you’re trying to paint a picture of incumbents going into back rooms and passing laws to protect themselves in secret, then that’s not the picture of campaign finance reform. Those laws tend to be passed only with tremendous amount of public pressure and in the light of day, often on the ballot. So the picture you’re painting just doesn’t accord with the process and the overwhelming majority of citizens that support these stronger limits. So I see–.

But let’s move on. I mean, we can move on to other bigger-picture questions.

DESVARIEUX: David, let’s talk about Adam’s point specifically regarding big money and them having a greater influence in politics because of this legislation. I mean, can you argue against that, really? I mean, doesn’t it sound very logical that if someone has more money and they’re able to contribute $1 million or more to someone’s campaign, wouldn’t that grant them a level of access that the average Joe who might donate $10 to a campaign cannot afford?

KEATING: Yeah. Who’s going to deny that? But there are lots of other levels of influence as well. If people who are famous movie stars, famous public figures, they do endorsements, I mean, should we limit influence of influential people? I mean, I say no. And some people, their influence might just stretch to they’ve been successful in life, they’ve worked hard, and basically they just want to speak.

And, you know, Adam’s point of view is he doesn’t want anyone to spend any money speaking if it has anything to do with an election. And I think that’s a mistake. I think what we should do is we should have free flow of information, people should speak, voters should listen and the voters vote. And we have laws against giving people money to vote a certain way. We have laws against giving legislators money to vote a certain way. But I don’t think we should have laws saying people can’t speak. And I also think if candidates and voters think it’s really important, we should leave it up to the candidates and the voters to decide these sorts of things.

Now, as far as the McCutcheon case, let’s keep some perspective here. No matter how the Court rules, nothing is going to change in terms of how much an individual can give to an individual candidate. It’s still going to be $2,600 per candidate for election. That’s not going to change from the Court’s decision. But what may change is if someone wants to give to a 19th candidate the maximum amount, then it’s going to be okay.

And I say if there are people–look, there are a lot of votes that needed to be changed, for example, if you believe in gun control. You’re going to need to change a lot more than 19 votes in Congress. So if you want to, if you can find people that want to support people that support gun control and they want to give to 40 candidates, I say there’s nothing wrong with that.

DESVARIEUX: Okay. Let’s have Adam speak for himself. Adam, what’s your response to that?

LIOZ: Sure. It’s not the case that I don’t think anyone should speak or in fact spend money. Actually, I think that going out and knocking on doors and raising money from average citizens at $100, $200 a pop is actually a very healthy part of our democracy.

All I’m trying to say is, again, the size of your wallet shouldn’t determine the strength of your voice. So just because you happen to be successful or even just lucky in the economic sphere, inheriting or making a lot of money, doesn’t mean you should be able to translate that economic might directly into political power. And that’s what this case is about.

KEATING: Okay. So let’s say–.

LIOZ: David, you talked for a while. Can I–?

KEATING: You can spend more time–


KEATING: –knocking on doors, and you think that’s okay. Or let’s say you’re famous and you can hold a free rock concert to sell, you know, lots, hundreds, maybe tens of thousands of tickets for your favorite candidate,–

LIOZ: There’s a reason why money is different [crosstalk] There’s a reason why money is different [snip] saying there’s actually a very particular reason why money is different from all those other examples that David has given, which is that new political science research has confirmed what common sense would tell you, which is that people who are very wealthy don’t think, work, or live the same as the rest of us, and they have very distinct and different policy preferences than the rest of us.

A great example of this is the priority that folks give to reducing the debt and deficit versus creating jobs and getting our neighbors back to work. The very wealthy consider the debt and deficit their top priority and reducing unemployment much less so. The general public has the reverse priorities. So what we have is a situation in which the very fact that people are wealthy is giving them different priorities. And the next point is really critical, which is that the Congress and government in the U.S. responds almost exclusively right now to the priorities of the wealthy. If you are in the bottom third of the income distribution, your preferences do not matter at all to the Congress, and if you are in the 90 percent, your preferences are trumped by the top 10 percent.

So what that means is that money is different. Money gives you a different life experience, a different set of preferences. And in our current big-money system, which McCutcheon would make worse if it goes badly, it means that the government and Congress are listening almost exclusively to the people of the top. That is not a fair democracy. That is not what the founders intended. And so we think there are ways consistent with everyone getting to participate and speak freely that would create a system that’s just more fair.

DESVARIEUX: Okay. I’ll let you have the final word, David.

KEATING: That’s a very dangerous line of thinking, because if you look in various industries that have a lot of influence, a lot of people think the media has a certain point of view, a lot of people think the entertainment industry has a certain point of view. And I think it’s a very dangerous idea to say, because people have certain points of view, then Congress should be able to regulate how much they can get involved in speaking, whether it’s by paying for the speech or running the speech on their own news networks. That’s a recipe for government control of exchange of ideas. It’s a very, very dangerous idea. That sort of idea could be used for the Congress someday to say, we don’t like things like The Real News Network. We don’t like what they’re putting out. They’re putting out a certain point of view. We think we should regulate it because it’s dangerous, because it speaks to a certain audience, or because it comes from a certain audience.

I say let a thousand voices speak, let everyone speak the way they can. And if rich speak, fine. If famous people like Opera speak, fine. I say let everyone speak and let the voters decide. Adam basically doesn’t trust the voters to go through this information, so he wants to control what they will hear.

DESVARIEUX: Okay, Adam. I have to let you respond to that.

LIOZ: Thank you. I think that’s just unfair. And it’s not about censoring any particular viewpoint. It’s about certain people being able to flood the system and having an overwhelming volume, which drowns out other voices.

And we also, by the way, filed an amicus brief in this case, and what we showed in our brief is that that very reality is contributing to an overwhelming appearance of corruption in this country. Congress has the lowest opinion levels on record even before the shutdown. And that is directly related to the fact that the average citizen understands that he who pays the piper calls the tune and his or her representatives are more accountable to their large donors than their constituents.

This is not a tenable situation for a robust democracy. It’s something we need to fix, not something we need to exacerbate. And, unfortunately, Mr. McCutcheon and his allies are pressing a case in the Court which would make things much worse.

DESVARIEUX: Okay. Very, very lively debate.

Thank you very much for joining us, David.

KEATING: You’re welcome. Thank you.

DESVARIEUX: And thank you for joining us as well, Adam.

LIOZ: Thanks for having me.

DESVARIEUX: And we’ll certainly be keeping track of this case in the final ruling in the Supreme Court.

And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.

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David Keating is the president of the Center for Competitive Politics (CCP), which is dedicated to protecting First Amendment political rights through litigation, education and advocacy. He founded in 2007 to give Americans who support free speech a way to join together, pool their resources, and advocate for federal candidates who agree with them—and work to defeat those who do not. The group won the lawsuit against the Federal Election Commission that created the Super PAC. Prior to joining CCP, he was Executive Director of the Club for Growth and Executive Vice-President of National Taxpayers Union.



Adam Lioz is a lawyer and policy advocate who serves as Demos Counsel. He is the co-author of McCutcheon Money: The Projected Impact of Striking Aggregate Contribution LimitsPrior to joining Demos, Adam promoted campaign finance reform and election administration reform for U.S. PIRG.